FWC orders reinstatement where performance issues were mischaracterised as ‘misconduct’.

A recent Fair Work Commission decision Sonneveld v Community Based Support Limited [2026] FWC 2461 handed down on 31 August 2026, highlights the risks of mischaracterising conduct, and the failure of an employer to respond to workload concerns before dismissal.

The employee applicant, a Care Coordinator in aged care/disability services, employed for ~5.5 years and a union delegate, was dismissed after an investigation produced numerous allegations, including delays in client follow-up, incomplete case notes, and billing issues.

There was no evidence of particular issues in relation to the employee’s conduct or performance other than an issue in August 2024 where a client was regularly away from his home at the time of supports and did not have a phone to call, so a decision was made not to conduct a welfare check each time and instead follow up with the client when possible. Support workers had raised concerns about the client not answering the door and in the weeks that followed, the client was found deceased in his home. The Employer issued a first and final warning to the employee for a failure to follow a non-response to scheduled visits policy and failure to document interactions. The Employer described the conduct as ‘supervisory neglect’ (First & Final Warning).

Fast forward to January 2026 and the employee was directed to attend a meeting regarding:

1. his care and management of clients within his workload;

2. a range of issues that have or may have a serious impact on the health and safety of clients;

3. the quality of supervision and care provided to clients;

4. commencing services in a timely manner; and

5. ensuring field staff rosters are maximised according to work pattern requests.

The Employer stated the primary incident which led to the disciplinary process concerned a client who was receiving wound care in hospital and eventually passed away (Primary Incident). The employer alleged the employee did not follow up with the client to see how he was and whether he was returning from hospital soon. However, shortly afterwards, the employee spoke to the client’s daughter in law who said the client had died in hospital. The Employer said concerns over how the employee handled the Primary Incident led to the employer conducting a broader investigation.

In February 2026, the employee attended a ‘concerns’ meeting relating to alleged conduct with respect to various clients the Primary Incident. The employee responded in writing and noted his concerns around the high caseload at the time of the Primary Incident and raised an email he sent to his Manager, about his concerns with his high workload and the potential risk arising from such workload. The employee wrote on 5 December 2025 stating, among other things, that

1. “the overall workload has become increasingly challenging to manage”;

2. “it often feels as though more tasks are coming in each day than can realistically be completed, which has caused a growing backlog”;

3. “I'm concerned that despite completing a reasonable number of tasks each day, this could eventually be viewed as a performance issue when the volume itself is the core difficulty”;

4. “Client loads are starting to get a bit high. I just want to flag that from previous conversation the general expectation was that once client loads starting to get around the 40-45 mark that another coordinator would be added to the team. I hope this isn't seen as a complaint. I'm just concerned that the high workload is getting in the way of providing quality care to our clients.”

Under cross examination at the time of the unfair dismissal hearing, the Employer said a meeting was held to discuss the employee’s workload concerns, but it occurred after 25 February 2026, which was almost 3 months after the employee raised his concerns. The Employer did not consider the workload concerns valid and the Commission noted nothing was materially done about the concerns.

In relation to the Primary Incident, the employee noted he engaged with the client, but the client expressed concerns about the quote for assistance and preferred to have his bandages changed by his GP at an upcoming appointment. The employee admitted that he failed to make notes about some of these matters in the system as he was supposed to do, but disputed anything he did contributed to the client’s death.

The Employer ultimately raised 27 allegations against the employee relating to conduct including, for example:

1. a failure to identify, escalate and/or act on risks to client wellbeing;

2. service continuity and delivery of safe care;

3. a failure to keep proper file notes;

4. breaches of the Care Coordination Procedure by not escalating some issues or concerns;

5. failure to take timely and reasonable steps to establish and commence services for clients;

6. billing issues; and

7. governance risks.

The employee provided a comprehensive response to the allegations including but not limited to, that he had previously raised concerns about his high workload and risks, he had difficulties with a new invoicing system leading to the billing issues and he didn’t believe he had put any clients at risk.

The Commission noted:

1. the allegations were most serious in that the employer alleged the employee’s laxity, caused risk;

2. the Employer relied on the proposition that the employee was on notice that his performance and conduct fell short of the Respondent’s expectations because his manager told him so.

3. that reliance was problematic as the Manager did not give evidence and the only evidence before the Commission was that the Manager said there were issues with the employee, but without any detail;

4. the Employer found all of the allegations substantiated and terminated the employee for misconduct considering the ‘gravity of the conduct’, some of which was believed to be grossly negligent in terms of client care and the First & Final Warning, and the employer considered the conduct serious misconduct;

5. the legal position that improper conduct engaged in by an employee, or even ‘misconduct’ will not necessarily constitute a valid reason for dismissal, simply because it is proven to have occurred; and

6. the employee submitted the performance issues were mischaracterised as misconduct and his conduct was not wilful, deliberate or malicious, nor did he pose any risk to any clients.

The Commission ultimately agreed with the employee stating:

1. the nature of the allegations was more about work performance that conduct;

2. the employer had not established the employee breached policies or procedures;

3. there was not a valid reason for dismissal;

4. the employee’s culpability in not having performed his work to the standard desired by the Employer is mitigated by the workload pressures he was experiencing;

5. the employer’s failure to deal with workload concerns and terminating the employee made it harsh in the circumstances; and

6. although the employee was on notice his performance had to improve because of the First & Final Warning, it did not outweigh the absence of a valid reason for dismissal.

The Commission ordered reinstatement, continuity of service, and indicated an order for restoration of lost pay of (approximately 6 months), subject to offsets for post-dismissal earnings.

Important Considerations for Employers

• Keep your performance improvement plans (PIP’s) documented well;

• consider the characterisation of the conduct and have well documented evidence of breaches of policies or procedures. As in this case, delays and record keeping issues may largely be performance issues rather than misconduct, depending on the situation;

• consider training, PIP’s and feedback to provide measurable improvement steps for the employee before you terminate for underperformance;

• if relying on safety grounds, ensure your evidence supports the asserted risk. Employers should avoid acting on inferences or vague allegations; and

• it is a timely reminder to update your documents including employment agreements, policies, procedures and to seek advice when stepping through performance issues or considering a termination.

This article is general information only and not legal advice. If you require legal advice for your business, reach out so we can assist on jade@jeslegal.com.au or 07 4599 3009.